There are six Seanad amendments and one amendment in the name of the Minister in lieu of Seanad amendment No. 1. I call on the Minister to move the amendment in his name.
Copyright (Amendment) Bill, 1984: From the Seanad.
The Dáil went into committee to consider amendments from the Seanad.
NEW SECTION.
I move amendment No. 1:
That, in lieu of Seanad amendment No. 1, the following amendment be made, viz:——
"In page 2, before section 1, to insert the following new section:
1. —Section 14 of the Copyright Act, 1963, is hereby amended by the insertion after subsection (7) of the following subsection:
‘(7A) The act of reproducing an object of any description which is in three dimensions shall not be taken to constitute an infringement of the copyright in an artistic work in two dimensions (other than such a work relating to a work of architecture) if——
(a) any of the features following, that is to say, shape, configuration and pattern, that appear in the work and are applied to the object are wholly or substantially functional, and
(b) the object is one of a number, in excess of fifty, of indentical objects which have been manufactured and made commercially available by the owner of the copyright or by a person authorised by him in that behalf.'.".
I move amendment 1 to amendment No. 1:
In the fifth line, after "artistic", to insert ",cultural or educational".
This is a slightly unusual situation because we are dealing with amendments to a Bill which has come back from the Seanad. This Bill commenced its life in 1984, has been the subject of discussion in the Seanad and has now come back to the Dáil.
We have no fundamental problem with the Minister's amendment. We understand the reasons for it and we know there is a serious issue involved in relation to industrial copyright. We know it is the perception of those engaged in industrial promotion in this country that the amendment that is before the House in the Minister's name is in broad terms desirable, if not essential. However, there are one or two elements of it that we, hopefully, seek to improve.
To be frank I am not convinced about my first amendment because it depends essentially on the definition of "artistic". That is broadly defined in the Act but nevertheless I feel it might be strengthened by the addition of a couple of words and that is what this amendment is designed to achieve. I do not intend to go to the wall on this amendment. There are one or two aspects on which I would like clarification. Section 9 of the Copyright Act 1963 defines the word "artistic". Three categories of descriptions are given: (a) paintings, sculptures, drawings, engravings and photographs, irrespective of their artistic quality; (b) works of architecture being either buildings or models for buildings; and (c) works of artistic craftsmanship not falling within the descriptions contained in either of those two.
These days many drawings, designs, and so on which would be the subject of a Bill like this are either computer-based, based on some form of computer graphics or are technologically-based. I wonder whether the Minister's amendment lacks a little in terms of embracing that concept. I am not going into any quasi-legal wrangle over these words. I am not sure that the three categories referred to — paintings, sculptures, etc., works of architecture, etc. and works of artistic craftsmanship not contained in those two — would embody or embrace something that is computer-based or computer-developed. That would be a very logical area to act as a repository for the items under consideration here.
Basically the purpose of my amendment is to strengthen the word "artistic" in the Minister's amendment. I am not sure my proposal strengthens it in the way it should be strengthened. However, I submit that it does not do it any injury. Perhaps the Minister would be good enough to clarify whether he is certain that computer-based designs, drawings or graphics of one kind or another are adequately embodied in the definition to cope with any challenge that might be made to this Bill.
My second amendment seeks to replace the word "and" by the word "or". The Minister's amendment defines copyright in an artistic work and uses the following words: "any of the features following, that is to say, shape, configuration and pattern, that appear in the work and are applied to the object are wholly or substantially functional...". I wonder whether the word "or" should be there instead of the word "and". As it is presented the onus is on those who would pursue an action under the Bill to prove that the act involved would need to have any of those three features — shape, configuration and pattern — and would also need to be applied to the object. The sense of this is "or" rather than "and". In other words, it should have any of those three things and they should be applied to the object. The word "and" seems to place a lot of emphasis on the need to demonstrate both categories as being in place. More flexibility might be given to the Bill if the word "or" was used instead of the word "and".
My third amendment relates to section (7A) (b) of the Minister's amendment which states: "the object is one of a number, in excess of fifty, of identical objects which have been manufactured and made commercially...". I have studied this Bill carefully. It started off with one purpose in mind and it seems to have developed a life of its own somewhere along the way. The word "identical" probably means objects that are identical. However, there could very well be categories of objects, say, on video tape or otherwise, that would be similar, that would have features and content which would be 99 per cent the same but which would not be identical. I wonder if what the Minister is trying to achieve could be better obtained by replacing the word "identical" with the word "similar". That is what I am trying to achieve. I want to strengthen the section rather than anything else.
I know we are confined in this debate to debating the amendments which have come back from the Seanad. I did not have the pleasure of being involved in the Second Stage debate in 1984 which was interesting and allowed speakers to paint a broader picture. I know we are confined in this respect but the amendment is desirable and we support it. We simply raise those points to see to what extent we can add to its strength. In amendment No. 1 I raised a slight query over the word "artistic", in amendment No. 2 I suggested the substitution of the word "or" for "and" and in amendment No. 3 I suggested an alternative to loosen up a little the narrow definition of the word "identical". The above points were raised in an effort to try to aid the Minister in this respect.
I would like to deal with the amendment of the Minister for Industry and Commerce to Seanad No. 1 amendment. Deputy Keating's three amendments also relate to section 1. The amendment which the Minister has put down changes the copyright position which has been established by case law on drawings of purely functional objects. Under this amendment it will no longer be an infringement of copyright of the original drawing of a functional article if somebody other than the copyright owner reproduces the article, provided that the copyright owner is also making such articles in commercial quantities.
Under the basic Copyright Act, 1963, the owner of the copyright of an original drawing of a functional object is entitled to prohibit others from reproducing the same object without permission. The terms of copyright protection attached to such original drawings last for the lifetime of the author plus 50 years thereafter. It is considered that this degree of protection is far too extensive and in so far as our research shows is not available in other countries. The effect of this copyright protection, because of the monopolies to which it can give rise, is considered to be undesirable in itself. It tends to foster anti-competitive situations particularly in the supply of such objects such as spare parts and components. Accordingly, during the passage of the Bill through the Seanad, the opportunity was taken to introduce an amendment which would curtail the degree of copyright protection available in the circumstances to which I referred. The Seanad passed the amendment which is set out in No. 1 in the list of Seanad amendments. The Minister has made a slight alteration which relates only to the wording in (7A) from "The making of an object" to "The act of reproducing an object".
Why?
"The making of an object" was the wording used in the amendment passed by the Seanad and our best advice suggested that it would be more appropriate to use the words "The act of reproducing an object".
Why was it more appropriate?
The best legal advice we could get suggested this form of words was more appropriate and more correct.
I assume it was because "The making of an object" might be somewhat circumscribed and might merely be defined as manufacturing. I wish to clarify whether the words now in place have a broader meaning.
Basically the wording was changed on legal advice because we wanted to ensure that indirect copying could not take place as a result of the amendment that was adopted by the Seanad.
The idea was that where somebody might make an object they would have sole right to it and that another person could not come and reproduce the same object.
We have no disagreement with that point. Deputy Lynch fought a vigorous battle on a number of points, when he was in the Seanad, some of which I will refer to later. The Seanad amendment said "‘(7A) The making of an object of any description which is in three dimensions..." which is the amendment which the Senators in their wisdom passed. The Minister's amendment which is before us says "The act of reproducing an object" I ask why this change has been made. I have surmised the reason but should the Minister want to answer I am happy to listen.
Some people have become expert at reproducing objects and in pirating them.
What is the difference between "the making of an object" by a pirate and "The act of reproducing an object"?
If somebody makes something themselves, they are entitled to a copyright. For example, if I compose a tune, it is mine. Somebody could hear it outside the door and reproduce it on tape; they are pirating my ideas.
Is that what happened outside the ceili house in Oldcastle?
I will attempt to clarify the wording for Deputy Keating. We sought advice on the wording of the amendment which as the Deputy knows is done frequently enough. We were advised by the Attorney General that making could apply to direct copying, whereas reproducing related to indirect copying. We wanted to ensure that the positions would be clarified and that there would not be any ambiguity in the type of wording used. That was the best legal advice which the Government could get and I believe it is correct.
This Seanad Bill has been in progress for some time. I am glad to say that the former Seantor Lynch is now Deputy Lynch. I am afraid my status has not been enhanced in the intervening period — however, such are the fortunes of war.
You have become a deputy leader.
The perks are not so good. As I recollect, this amendment was introduced to facilitate a particular project which Hyster were promoting for Limerick. They wanted this change in the law. It was not that the Government of the day felt that a change was inherently desirable but it was felt that in respect of a change of this kind if it did not have any major downside risks and if it did help to get this project, so long as the project itself was reasonable, they would go ahead with it. As we all know, at the end, the project was not attractive to the Cabinet from a financial point of view and did not go ahead. I know a good deal of water has flowed under the bridge since the Hyster project stopped in its tracks so to speak. Are the Government satisfied that, independently of that particular industrial project, this diminution of copyright protection is inherently justifiable on its own merits? The British have recently published a huge paper proposing a revision of copyright law and I would imagine that the Irish Government have not yet had an opportunity to digest its implications. For us to proceed on one small area of copyright law while such a major review is being carried out in another jurisdiction which is also a member of the European Community is something that needs to be justified. Perhaps the Minister would comment on that matter.
Progress reported; Committee to sit again.